NOT YET SCHEDULED FOR ORAL ARGUMENT
Nos. 11-1355, 11-1356, 11-1403 and 11-1404
In the
United States Court of Appeals
for the
District of Columbia Circuit
VERIZON, et al.
Appellants-Petitioners,
– v. –
FEDERAL COMMUNICATIONS COMMISSION, et al.
Appellees-Respondents.
––––––––––––––––––––––––––––––
APPEAL FROM THE FEDERAL COMMUNICATIONS COMMISSION,
NO. FCC-76FR59192
BRIEF OF AMICI CURIAE REED HUNDT, TYRONE BROWN,
MICHAEL COPPS, NICHOLAS JOHNSON, SUSAN
CRAWFORD AND THE NATIONAL ASSOCIATION
OF TELECOMMUNICATIONS OFFICERS AND
ADVISORS IN SUPPORT OF APPELLEE
SEAN H. DONAHUE
Counsel of Record
DONAHUE & GOLDBERG, LLP
2000 L Street, N.W., Suite 808
Washington, D.C. 20036
(202) 277-7085
DAVID T. GOLDBERG
DONAHUE & GOLDBERG, LLP
99 Hudson Street, 8th Floor
New York, New York 10013
(212) 334-8813
Attorneys for Amici Curiae Reed Hundt, Tyrone Brown,
Michael Copps, Nicholas Johnson, Susan Crawford and
The National Association of Telecommunications Officers and Advisors
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
(A)
Parties and Amici
The parties are listed in the Joint Brief for Verizon and MetroPCS, except
that CTIA—The Wireless Association is no longer a party to this case.
The parties before the Federal Communications Commission are listed in the
Joint Brief for Verizon and MetroPCS.
Amici in support of Appellant/Petitioners are Cato Institute, Competitive
Enterprise Institute, Free State Foundation, TechFreedom; Commonwealth of
Virginia; and the National Association of Manufacturers.
Amici in support of Appellee/Respondents are Scott Bradner, Douglas B.
Comer, John Klensin, Jim Kurose, David Reed and Paul Vixie; Tim Wu; Center
for Democracy & Technology, Marvin Ammori, Jack M. Balkin, Michael J.
Burstein, Anjali S. Dalal, Rob Frieden, Ellen P. Goodman, David R. Johnson,
Dawn C. Nunziato, David G. Post, Pamela Samuelson, Rebecca Tushnet, Barbara
van Schewick, and Jonathan Weinberg; Reed Hundt, Tyrone Brown, Michael
Copps, Nicholas Johnson, Susan Crawford, and the National Association of
Telecommunications Officers and Advisors; Scott Bradner, Douglas B. Comer,
John Klensin, Jim Kurose, David Reed and Paul Vixie.
i
(B) Rulings under Review
The FCC order challenged here is cited in the Joint Brief for Petitioners
Verizon and MetroPCS at ii.
(C) Related Cases.
The positions of the parties concerning a potentially related case, Cellco
Partnership d/b/a Verizon Wireless v. FCC, Nos. 11-1135, et al., are set out at
Joint Brief of Verizon and MetroPCS at vii-viii, and Brief for
Appellee/Respondents at ii.
Respectfully submitted,
Sean H. Donahue
Sean H. Donahue
January 16, 2013 (Final Brief)
ii
RULE 26.1 STATEMENT
The National Association of Telecommunications Officers and Advisors
(“NATOA”) is a national trade association that promotes local government
interests in communications and serves as a resource for local officials as they seek
to promote communications infrastructure development. NATOA has no parent
company and no publicly held company has a 10% or greater ownership interest in
NATOA.
The other amici are individuals.
Respectfully submitted,
Sean H. Donahue
Sean H. Donahue
January 16, 2013 (Final Brief)
iii
RULE 29 STATEMENTS
This brief is filed with the consent of all of the parties.
Pursuant to Fed. R. App. P. 29(c)(5), amici state that no party or party’s
counsel authored this brief in whole or in part; that no party or party’s counsel
contributed money that was intended to fund preparing or submitting the brief; and
that no person—other than the amici and their counsel—contributed money that
was intended to fund preparing or submitting the brief.
Pursuant to D.C. Cir. Rule 29(d), amici state that a separate brief is
necessary for the following reasons. Amici submit this brief based upon their
extensive experience in the formulation and implementation of
telecommunications policy – for four of the amici, as former FCC Commissioners;
for another, as a former White House telecommunications policy advisor, and for
the other amicus, as an association bringing together state and local officials and
bodies with interests and expertise in telecommunications policy. As such, amici
submit this brief from a different perspective from any other amicus (or party) and
with a different objective – focusing less on the particular merits of the FCC
regulations at issue, and instead on the distinctive harms to the policymaking
process that would flow from adopting the rules of constitutional law advocated by
petitioners in this case. Amici also wish to limit their participation to these
iv
arguments, rather than a detailed discussion of the important policy issues this case
presents.
Amici are aware of three other amicus briefs to be filed in support of the
FCC in this case, one from a legal scholar addressing the relevant historical
background; another, on behalf of a public interest organization and legal scholars
concerned with internet freedom, that addresses certain First Amendment issues
(though not the Takings issue); and another from a group of internet engineers and
technologists. Amici understand the coverage of these briefs to be significantly
different from ours, and that none of the other amicus briefs will address the
institutional and separation of powers concerns that are central to our argument.
Respectfully submitted,
Sean H. Donahue
Sean H. Donahue
January 16, 2013 (Final Brief)
v
TABLE OF CONTENTS
Certificate as to Parties, Rulings and Related Cases ..................................................i
Rule 26.1 Statement ................................................................................................. iii
Rule 29 Statements....................................................................................................iv
Table of Contents ......................................................................................................vi
Table of Authorities ............................................................................................... viii
Glossary of Abbreviations ..................................................................................... xiii
Statutes and Regulations ..............................................................................................
Statement of Interest and Summary of Argument ..................................................... 1
ARGUMENT ............................................................................................................. 5
I. The Court Should Reject Verizon’s Constitutional Claims .................................. 3
A.
The FCC’s Rules Do Not Implicate, Let Alone Abridge,
Any “Free Speech” Right of Verizon’s ......................................................... 3
1.
Verizon Is Not Speaking When It Transmits Communications
Between Edge Users and Its Internet Access Customers ...................... 4
2.
Non-Interference Is Not “Compelled Speech” ...................................... 9
3.
Verizon Enjoys No Constitutionally Protected “Discretion” to
Discriminate Against Internet Communications to and from
its Customers ....................................................................................... 11
B.
Verizon’s “Takings” Claim Is Also Meritless .............................................. 17
II.
The Court Should Reject, Not Postpone Decision of,
The Constitutional Claims And Affirm Congress’s Authority
To Enact Communications Law .................................................................... 22
vi
A.
Verizon’s Arguments Would Create a Sweeping Immunity
to Forms of Regulation Long Recognized
as Constitutionally Unproblematic ................................................................ 22
B.
Verizon’s Position Here Contradicts Its Own Repeated
Arguments Before Congress, the Courts and the FCC. ................................. 28
Conclusion. .............................................................................................................. 31
Addendum
Certificate of Compliance
Certificate of Service
vii
TABLE OF AUTHORITIES
Cases
Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986)..................................................16
*Associated Press v. United States, 326 U.S. 1 (1945) ........................................... 17
AT&T v. City of Portland, 216 F.3d 871, 878 9th Cir. (2000) ............................... 30
*Building Owners & Mgrs. Ass’n Int’l v. FCC,
254 F.3d 89 (D.C. Cir. 2001) .............................................................19, 20, 26
Cablevision Sys. Corp. v. FCC, 570 F.3d 83 (2d Cir. 2009) ................................... 18
CBS Broad., Inc. v. EchoStar Communications Corp.,
265 F.3d 1193 (11th Cir. 2001) ..................................................................... 25
Chesapeake & Potomac Tel. Co. v. United States, 42 F.3d 181 (4th Cir. 1994) ...... 8
*Cartoon Network v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) ............ 7, 13
In re Charter Communications, Inc., 393 F.3d 771 (8th Cir. 2005) .......................... 7
Denver Area Educ. Telecommunications Consortium, Inc. v. FCC,
518 U.S. 727 (1996)....................................................................................... 11
Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003) ...................................................... 5
FCC v. Florida Power Corp., 480 U.S. 245 (1987) ................................................. 20
FCC v. Midwest Video, 440 U.S. 689 (1979) ........................................................... 7
Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) .................18, 27
Kaiser Aetna v. United States, 444 U.S. 164 (1979) ............................................... 20
Katz v. United States, 389 U.S. 347 (1967) ............................................................... 7
Lingle v. Chevron USA, Inc., 544 U.S. 528 (2005) ................................................ 20
viii
*Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982).....................................................................17, 18, 19, 20
Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974) .................................11, 12
National Broadcasting Co. v. United States, 319 U.S. 190 (1943) ......................... 23
NCTA v. Brand X Internet Servs., 545 U.S. 967 .................................................... 21
NCTA v. FCC, 33 F.3d 66 (D.C. Cir. 1994) ........................................................... 13
NCTA v. Gulf Power, 534 U.S. 327 (2002) ......................................................14, 25
New York Cent. R.R. v. White, 243 U.S. 188 (1917) ............................................. 21
New York Times v. Sullivan¸ 379 U.S. 276 (1964) ................................................ 12
Pittsburgh Press Co. v. Pittsburgh Human Relations Comm’n,
413 U.S. 376 (1973)....................................................................................... 12
PruneYard Shopping Center v. Robbins, 447 U.S. 74 (1980) ...........................12, 18
RAV v. St. Paul, 505 U.S. 377 (1992) ....................................................................... 8
Recording Indus. Ass’n of Am., Inc. v. Verizon Internet Servs., Inc.,
351 F.3d 1229 (D.C. Cir. 2003)................................................................... 6, 7
Reno v. ACLU, 521 U.S. 844 (1997) ............................................................4, 11, 15
*Rumsfeld v. Forum for Academic and Institutional Rights, Inc.,
547 U.S. 48 (2006)...........................................................................4, 9, 10, 16
Sable Communications v. FCC, 492 U.S. 115 (1989) ............................................... 8
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) .............. 23
Southview Associates, Ltd. v. Bongartz, 980 F.2d 84 (2d Cir. 1992) ..................... 18
Spence v. Washington, 418 U.S. 405 (1974) ............................................................. 4
ix
Texas v. Johnson, 491 U.S. 397 (1989) ..................................................................... 4
*Turner Broadcasting v. FCC, 512 U.S. 622 (1994) .............................11, 12, 13, 16
United States v. Warshak, 631 F.3d 266 (6th Cir. 2010)........................................... 7
Statutory and Regulatory Provisions
and Administrative Orders
17 U.S.C. § 111(c) ................................................................................................... 25
17 U.S.C. § 119 ........................................................................................................ 25
*17 U.S.C. § 512 .............................................................................................6, 7, 18
47 U.S.C. § 152(a) ................................................................................................... 19
47 U.S.C. § 153(7) ................................................................................................... 13
47 U.S.C. § 224 ........................................................................................................ 20
*47 U.S.C. § 230 .................................................................................................. 6, 16
47 U.S.C. § 251(c)(3) ............................................................................................... 25
47 U.S.C. § 301 ........................................................................................................ 21
47 U.S.C. § 316 ........................................................................................................ 21
47 U.S.C. § 522(6) ................................................................................................... 13
47 C.F.R. § 8.3 ......................................................................................................... 15
In re Comcast Corp., 23 FCC Rcd 13028 (2008), vacated sub nom,
Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010) .................................. 9
Internet Policy Statement, 20 FCC Rcd 14986 (2005) ............................................ 21
Wireline Broadband Order, 20 FCC Rcd 14853 (2005) .......................................... 21
x
Other Materials
*Testimony of William Barr, General Counsel, GTE,
Hearing on H.R. 1686 and H.R. 1685, Internet Freedom Act and Internet
Growth And Development Act of 1999, Before the H. Comm.
on the Judiciary, 106th Cong. (June 30, 1999) ...................................3, 28, 29
Testimony of Thomas J. Tauke, Senior Vice President, Verizon Communications,
Hearing on H.R. 1686 and H.R. 1685, Internet Freedom Act
and Internet Growth And Development Act, Before the H. Comm.
on the Judiciary, 106th Cong. (July 8, 2000) ................................................ 29
Brief for U.S. Telecom Ass’n and Verizon Comm’ns as Amici Curiae,
NCTA v. Gulf Power, FCC v. Gulf Power Co.,
S. Ct. of the U.S. Nos. 00-832, 00-843 (Apr. 6, 2001)............................13, 29
Brief for Wireless Communications Ass’n, Int’l, et al.,
as Amici Curiae, NCTA v. Gulf Power, FCC v. Gulf Power Co.,
S. Ct. of the U.S. Nos. 00-832, 00-843 (Apr. 6, 2001)..................................25
Brief for Appellant, Recording Indus. Ass’n of Am., Inc. v. Verizon Internet
Servs., Inc., D.C. Cir. Nos. 03-7015 & 03-7053 (May 12, 2003) ................... 7
Joint Brief for Intervenors, NCTA v. FCC, D.C. Cir.
No. 91-1649 (Feb. 9, 1994). .......................................................................... 14
Google and Verizon Joint Submission on the Open Internet, submitted
in FCC GN Docket No. 09-191;
WC Docket No. 07-52 (Jan. 14, 2010) ......................................3, 7, 11, 15, 21
Comments of Verizon and Verizon Wireless,
FCC GN Docket 10-27 (July 15, 2010)......................................................... 30
David S. Ardia, Free Speech Savior or Shield for Scoundrels:
An Empirical Study Of Intermediary Immunity Under Section
230 Of The Communications Decency Act,
43 Loy. L.A. L. Rev. 373 (2010) ..................................................................... 6
xi
Stuart M. Benjamin, Transmitting, Editing, And Communicating:
Determining What “The Freedom Of Speech” Encompasses,
60 Duke L.J. 1673 (2011) ................................................................................ 4
Joseph D. Kearney & Thomas W. Merrill, The Great Transformation of
Regulated Industries Law, 98 Colum. L. Rev. 1323 (1998) ......................... 24
Susan P. Crawford, Transporting Communications,
89 B.U. L. Rev. 871 (2009) ........................................................................... 27
*Authorities chiefly relied upon are marked with asterisks.
xii
GLOSSARY OF ABBREVIATIONS
DMCA
Digital Millennium Copyright Act
FCC
Federal Communications Commission
ISP
Internet Service Provider
NATOA
National Association of Telecommunications
Officers and Advisors
Open Internet Rules
In re Preserving the Open Internet;
Broadband Industry Practices, Report and Order,
76 Fed. Reg. 59192 (Sept. 23, 2011)
xiii
Introduction and Statement of Interest
As described more fully in the Addendum, Amici include individuals and an
organization whose members have long experience with the Nation’s
communications laws – administering, enforcing, and commenting upon legal
frameworks that govern the mediums of information exchange and connectedness
vital to modern economic, civic, and social life. See Add. A-1.
We submit this brief to respond to – and urge that the Court reject – the
startling constitutional arguments that Verizon raises in opposition to the FCC’s
action here. Verizon submits that because corporations like Verizon own some of
the physical facilities that transmit the electromagnetic waves which in turn carry
the digitized information that composes the experience of the Internet for all users,
and because much of the data that passes over Verizon’s property is itself
constitutionally protected Speech, (1) these network operators enjoy a “First
Amendment” right to decide what shall be communicated by means of the Internet
akin to a newspaper publisher’s control of its editorial page and (2) that Congress
presumptively may make no law that inhibits Verizon’s choices, whether made to
disadvantage a competitor or to suppress views Verizon disapproves.
These arguments are startling on their own terms – Verizon recognized in a
recent submission to the FCC that the regime it urges here would be “the beginning
of the end of the Net.”
Their premises and implications contradict public
1
understandings and legal rules Verizon itself has encouraged (and benefitted from)
before all three branches of government. And Verizon’s arguments fail as a matter
of
constitutional
principle:
that
transmission
enables
someone
else’s
constitutionally-protected expression does not mean that it is itself Speech.
But the need for this Court to reject Verizon’s claims of constitutional
immunity from regulation goes beyond their doctrinal unsoundness. Were
Verizon’s theories credited, Congress’s historic power to take and authorize
measures to preserve openness of communication networks would be unsettled and
dramatically narrowed.
However the Court rules on the challenges to the FCC’s
action here, it should vindicate that authority and explicitly repudiate Verizon’s
effort to “constitutionalize” matters, involving adjustment of complex, competing
private and public interests, that have long and properly been understood to be for
legislative and administrative resolution.
2
ARGUMENT
I. The Court Should Reject Verizon’s Constitutional Claims
The minute that anyone, whether from the government or the private sector,
starts to control how people access and use the Internet would be the
beginning of the end of the Net as we know it….When a person accesses the
Internet, he or she should be able to connect with any other person that he
or she wants to[.]
– Google and Verizon Joint Submission on the Open Internet,
submitted in GN Docket No. 09-191 (Jan. 14, 2010) (“Joint
Submission”) (Add. A-20)
You can install a driveway and get a fair return from the consumer for
installing that driveway, but that does not give you the right to dictate to the
household where they go on the highway.
–Testimony of William Barr, General Counsel, GTE, Hearing on H.R.
1686 and H.R. 1685 Before the H. Comm. on the Judiciary, 106th
Cong. 20 (June 30, 1999) (Add. A-3)
A. The FCC’s Rules Do Not Implicate, Let Alone Abridge, Any “Free
Speech” Right of Verizon’s
What Verizon not long ago described as harkening “the end of the Net as we
know it” – i.e., “private … control [over] how people access and use the Internet,”
Joint Submission at 7, its brief now posits to be a constitutional imperative.
According to Verizon, a rule prohibiting it and others who operate the “last mile”
of the Internet from blocking their customers’ access to lawful content of their
choice violates its First Amendment right to “control …which speech they transmit
and how they transmit it,” Br. 44; is “compel[led] … speech,” id., akin to a law
directing a newspaper what to publish, id. at 43.
3
These assertions – advanced by Verizon alone among the many broadband
internet access providers who, on Verizon’s theory, have suffered the same
“injuries” – do not state any valid or even seriously plausible constitutional claim.
On the contrary, they are at odds with common sense, with settled First
Amendment law, and with legal and societal understandings that Verizon has
encouraged and benefitted from.
1.
Verizon Is Not Speaking When It Transmits Communications
Between Edge Users and Its Internet Access Customers
Verizon’s Free Speech arguments rest on an undefended and mistaken
premise: that because much of the data that passes over the network Verizon
operates is “speech” protected by the First Amendment, see Reno v. ACLU, 521
U.S. 844 (1997), Verizon’s act of transmitting it in the course of providing its
customers access to the Internet is itself within “the Freedom of Speech.” The law
is otherwise: precisely because the consequences of First Amendment protection
are so significant, the Supreme Court has set a threshold to guard against clever
“First Amendment” claims that “trivialize the freedom” it protects. Rumsfeld v.
Forum for Academic and Institutional Rights, Inc. (FAIR), 547 U.S. 47, 62 (2006).
“The Freedom of Speech,” the Court has held, encompasses only conduct that is
(1) “inherently expressive,” id. at 64 or (2) evinces “[a]n intent to convey a
particularized message’ . . . that ‘would be understood [as such]” by its audience.
Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418
4
U.S. 405, 410–411 (1974)). See generally Stuart M. Benjamin, Transmitting,
Editing, and Communicating:
Determining What “The Freedom of Speech”
Encompasses, 60 Duke L.J. 1673 (2011).
Thus, in FAIR, the Court rejected a “Free Speech” challenge to a statute
requiring law schools and other recipients of federal educational aid to host
military recruiters, notwithstanding the schools’ disapproval of the recruiters’
views about gay and lesbian students’ fitness for service. See 547 U.S. at 63–64.
The Court held that the claim failed because the conduct “compelled” was not
within “the Freedom of Speech”: It was not enough that the recruiters were
communicating a message, “because the schools [were] not speaking when they
host[ed] interviews and recruiting receptions” at which the military expressed
itself. Id. at 64 (emphasis added).
Verizon’s claim here – and its resumed entitlement to heightened “First
Amendment” scrutiny, Br. 45-48 – likewise fails at the threshold. There is nothing
inherently expressive about transmitting others’ data packets, at a subscriber’s
direction, over the Internet. Nor does Verizon explain what particularized message
(of Verizon’s) such transmission would seek or likely be understood to convey.
Indeed, the law, and Verizon itself, have long recognized a sharp distinction
between providing a facility whereby someone else’s speech is transmitted and
expression itself. The Communications Decency Act, which was enacted as part of
5
the same 1996 statute on which Verizon relies to attack the Open Internet Rules
here, provides that “No provider … of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another
information content provider.” 47 U.S.C. § 230(c). That provision, which Verizon
and other internet access providers have often invoked, builds upon longstanding
common law rules precluding liability for transmission of others’ unlawful content.
See, e.g., Doe v. GTE Corp., 347 F.3d 655, 656, 659, 661 (7th Cir. 2003)
(affirming dismissal of case against “subsidiaries of Verizon” for hosting website
that featured illegally-recorded videos, explaining that the company, “like a
delivery service or phone company, is an intermediary and [not] … liable for the
sponsor’s deeds”); David S. Ardia, Free Speech Savior or Shield For Scoundrels:
An Empirical Study of Intermediary Immunity Under Section 230 of The
Communications Decency Act, 43 Loy. L.A. L. Rev. 373, 390 (2010) (explaining
historic protections for “conduit intermediaries”).
This same understanding animates the “safe harbor” provisions of the
Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512. That law, whose
soundness and importance Verizon emphasized in FCC proceedings related to this
one, precludes “service provider” liability “for infringement of copyright by reason
of [its] transmitting, routing, or providing connections” when (among other things)
“the transmission is initiated and directed by an internet user.” Id. § 512(a); see
6
Joint Submission at 3 (urging that “any policy governing the role of online
intermediaries should continue to be governed by the carefully crafted compromise
in the [DMCA]”).
In Recording Indus. Ass’n of Am., Inc. v. Verizon Internet Servs., Inc., 351
F.3d 1229 (D.C. Cir. 2003) (RIAA), this Court, at Verizon’s urging, overturned a
DMCA subpoena seeking from Verizon – which it described as “acting as a mere
conduit for the transmission of information sent by others,” id. at 1234 – the names
of customers suspected of infringing copyrights. Verizon argued there that:
The DMCA … makes clear that Internet service providers, such as Verizon,
enjoy the same immunities that have traditionally applied to other entities
that provide pure “transmission” or “conduit” functions.
Br., No. 03-7015, at 23. Accord In re Charter Communications, Inc., 393 F.3d
771, 777 (8th Cir. 2005) (quashing subpoena on cable internet access provider,
because it was “acting as a conduit”); cf. Cartoon Network v. CSC Holdings, Inc.,
536 F.3d 121, 132 (2d Cir. 2008) (cable system operator did not “make”
unauthorized copies of copyrighted broadcasts its equipment recorded at
subscribers’ direction).1
1
The same logic prevails in the Fourth Amendment privacy context. United
States v. Warshak, 631 F.3d 266 (6th Cir. 2010), rejected the government’s
argument that the defendant’s contractual relationship with an ISP, which allowed
the provider to access his email for “routine” system maintenance purposes, id. at
286, extinguished his privacy interests in its contents. See id. at 287 (describing
ISP as “functional equivalent” of “post office or telephone company” and noting
that right was upheld in Katz v. United States, 389 U.S. 347 (1967)).
7
As RIAA itself illustrates, this settled understanding does not mean that laws
regulating providers cannot implicate Free Speech.
There, Verizon sought to
vindicate First Amendment rights – of its subscribers – to communicate
anonymously.
See Verizon RIAA Br. at 32-40.
And other decisions have
invalidated government efforts to suppress disfavored speech by imposing
requirements on those who transmit it. See, e.g., Sable Communications v. FCC,
492 U.S. 115 (1989). But the teaching of those cases is not that the act of
transmitting is itself inherently expressive, but that government may not pursue
constitutionally forbidden ends through indirect regulatory means. Cf. RAV v. St.
Paul, 505 U.S. 377 (1992) (First Amendment prohibits viewpoint-based regulation
of unprotected “fighting words”). 2 Here, of course, there is no allegation of a
suspect, let alone impermissible, governmental purpose. The Open Internet Rules
simply forbid providers of general-purpose broadband service from using their
physical control over a portion of the Internet to interfere with transmission of
content their customers lawfully seek to access for themselves.
2
Nor does it mean that Verizon is unprotected when it does speak, e.g., by
posting content on its website. Cf. C&P Tel. Co. v. United States, 42 F.3d 181,
196 (4th Cir. 1994) (holding that telephone companies “are not members of ‘the
press’” when transmitting telephone calls, but had speech rights in providing video
programming), vacated as moot, 516 U.S. 415 (1996).
8
2.
Non-Interference Is Not “Compelled Speech”
FAIR also forecloses any argument that – whether or not transmission of
data at its customers’ request constitutes its speech – a conduit’s act of refusing
transmission must be protected, because such interference might express
disagreement with the content being transmitted. The Supreme Court made clear
that the mandate that law schools “host” those whose speech they disapprove did
not warrant any First Amendment scrutiny – because the conduct “compelled” was
not itself speech.
Indeed, Verizon’s claim suffers numerous additional embarrassments.
Unlike the (unsuccessful) plaintiffs in FAIR, who sought to exclude the military
from their facilities in order to express their opposition to its discriminatory
policies, Verizon does not claim that it engages or intends to engage in prohibited
blocking.
Its legal and public policy arguments against the Rules insist that
customers would rebel against such conduct. See Br. 51 (“broadband providers
today generally provide subscribers access to all lawful [Internet] content … and
have strong economic incentives to continue to do so”).
And such behavior would be less likely than that in FAIR to be understood
to convey any intelligible message. Known instances of blocking and degrading
were undertaken in ways that sought to elude detection rather than to announce the
network operator’s “point of view.” See In re Comcast Corp., 23 FCC Rcd 13028,
9
13032 & nn.22-24 (2008) (noting that Comcast had denied purposefully degrading
service and had accomplished its aim by injecting “forged RST packets,” which
told “both ends to stop communicating”); id. at 13065 (Statement of Chairman
Kevin J. Martin) (“Comcast was delaying subscribers’ downloads and blocking
their uploads.…Even worse, Comcast was hiding that fact by making affected
users think there was a problem with their Internet connection or the application.”).
But in any event, as FAIR makes clear, conduct does not become
constitutionally-protected Free Speech every time it has an expressive motive.
Were that the law, many tax evaders and copyright and trademark violators could
not be punished, and every business’s decision to not deal with another would be
immunized if it could claim to be expressing some idea. (Indeed, the immunity
would not be limited to communications: A railroad owner might as easily express
its disapproval for one side of the abortion debate by refusing to ship adherents’
coal as their pamphlets).
The breadth – and deficiency – of the theory becomes
more apparent in light of what Verizon implies degrading or blocking might
“express”: its wish to disadvantage a competitor or “disapproval” of an application
unwilling to pay Verizon to prioritize data packets.
See Br. 44. If business
decisions made for business reasons were constitutionally-protected Speech, every
government regulation would be a presumptively unconstitutional abridgment.
10
3.
Verizon Enjoys No Constitutionally Protected “Discretion” to
Discriminate Against Internet Communications to and from its
Customers
Verizon’s efforts to liken its position to that of a newspaper publisher, see
Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974), or of the cable system
operator in Turner Broadcasting v. FCC, 512 U.S. 622 (1994), see Br. 43, likewise
blink reality. Even leaving aside salient market differences, newspaper publishers
are treated as and understood to be speakers – and responsible for the content they
publish. A reader of The Miami Herald – unlike one who signs up for broadband
internet access – does not expect “to be able,” as Verizon told the Commission, “to
connect with any other person … he or she wants to,” Joint Submission at 2, or be
provided with unmediated access to “content …as diverse as human thought.”
Reno, 524 U.S. at 870 (citation omitted).
Indeed, it is because newspapers
“exercise … journalistic judgment as to what shall be printed.” Tornillo, 418 U.S.
at 259, that publishers are held responsible for their contents: Unlike a “provider
… of an interactive computer service,” 47 U.S.C. § 230(c), a “newspaper may not
defend a libel suit on the ground that the falsely defamatory statements [it
published] are not its own,” Pittsburgh Press Co. v. Pittsburgh Human Relations
11
Comm’n, 413 U.S. 376, 386 (1973) (citing New York Times v. Sullivan¸ 379 U.S.
276, 279 (1964)).3
No more plausible is Verizon’s claim to the mantle of the cable operators
who challenged the “must carry” provisions in Turner Broadcasting. Turner did
not hold that every “transmission” over a cable company’s wires is protected Free
Speech.
Rather, the Court concluded that cable system operators can
“communicate messages” either through their own “original programming or by
exercising editorial discretion over which stations or programs to include in [their
channel] repertoire.” 512 U.S. at 636 (quotation marks omitted). Compare Denver
Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 793
(1996) (Kennedy, J.) (“In providing public access channels under their franchise
3
Tornillo implicated further fundamental First Amendment principles
entirely absent here: the right-of-response law challenged there was triggered by
the content and viewpoint of newspapers’ editorials, and the measure’s obligation
was itself content-based: the newspaper was compelled to publish views about a
particular subject with which it disagreed. As such, the “danger” was real that the
statute would “‘dampe[n] the vigor and limi[t] the variety of public debate’ by
deterring editors from publishing in the first place controversial political
statements.” PruneYard Shopping Center v. Robbins, 447 U.S. 74, 88 (1980)
(quoting Tornillo, 418 U.S. at 256). By contrast, the Commission’s Rules are
unconcerned with the viewpoint of the transmission network owners might block
or degrade.
12
agreements, cable operators … are not exercising their own First Amendment
rights. They serve as conduits for the speech of others.”).4
Cable systems selling pay-TV programming, unlike Verizon selling general
purpose internet access, provide their subscribers with access to only a small subset
of potentially available programming – and do so by means of contracts with
content owners seeking audiences for their material. Thus, the rules in Midwest
Video II could be said to have “transferred control of the content of … cable
channels from cable operators to [programmers] who wish to communicate by the
cable medium.” FCC v. Midwest Video Corp., 440 U.S. 689, 700 (1979).
Here,
“control” resides with the provider’s customers; the “wish” of any edge provider to
communicate with a Verizon subscriber has no purchase, absent a directive from
the customer to access their material. Accord Cartoon Network, 536 F.3d at 132
(for Copyright purposes, subscribers, not cable system implementing their
directions, “made” unauthorized recordings).5
4
Contrary to Verizon’s suggestion (Br. 43 n.12), Turner did not suggest that
the conduit “function[]” is itself Speech, but noted instead that cable operators’
transmissions were protected “[o]nce the[y] … selected the programming sources,”
512 U.S. at 628.
5
Nor do these user-selected applications obtain anything like a “dedicated
channel” that would preclude Verizon’s connecting that or any other customer to
other lawful content of their choosing. The First Amendment concern that most
troubled the dissenters in Turner was that the law specified particular speakers,
local broadcasters whose programming it required be carried, notwithstanding the
views and preferences of the cable systems and their customers. (Indeed, the
13
Indeed, briefs Verizon submitted to this Court and to the Supreme Court
refute its central assertions here. In NCTA v. Gulf Power, 534 U.S. 327 (2002),
Verizon explained that the statutory definitions of “cable service,” see 47 U.S.C.
§§ 522(6); 153(7), “plainly cannot encompass” “broadband internet access” –
which Verizon described as a “transport service” and a “transparent conduit for
content … selected by an end user and []originated by a third party.” Verizon Gulf
Power Amicus Br. at 19, 22 (Add. A-8, A-10). Congress, Verizon maintained, had
ratified this Court’s conclusion in NCTA v. FCC, 33 F.3d 66 (D.C. Cir. 1994) that
“‘transmitting’ a video signal [‘obviously’] implies at least choosing the signal, or
originating it,” id. at 72; Verizon explained that “once the cable operator connects
customers to their ISPs, the cable operator does no selection of the information
transported … Customers are in complete control of the information sent and
received.” Verizon Gulf Power Br. at 17, 21. This Court’s decision, in turn, had
agreed with the brief filed by Verizon’s predecessor, which emphasized the
fundamental distinction between “a cable television operator[’s] … ‘send[ing] out’
programming to its subscribers, and “provid[ing[a] … platform” that merely
“transport[s] (or ‘carr[ies]’) signals chosen and sent by multiple programmers on a
dissenters indicated that their Free Speech objections would be obviated had the
law instead treated the plaintiffs as “common carriers,” giving the government no
role in directing which broadcasters would benefit, see 512 U.S. at 684 (O’Connor,
J.).
14
nondiscriminatory, common carriage basis,” explaining that in the latter
situation,“[i]t is the programmer, not the [network operator] that ‘transmits’
programming.” Verizon NCTA Br. at 15 (Add. A-14-15).
Indeed, Verizon’s claims here to be speaking – or exercising editorial
judgment – whenever content travels without interference over its wires is
fundamentally at odds with what the company is publicly understood to be doing
(and what it says it is doing) in providing internet access. In its early 2010 FCC
submission, Verizon explicitly endorsed the Commission’s “existing …
principles,” which prohibited blocking, describing “the minute that anyone,
whether from the government or the private sector, starts to control how people
access and use the Internet,” as “the beginning of the end of the Net as we know
it,” Joint Submission at 7. Indeed, if interfering with content of which network
operators disapprove (or disapprove of transmitting, unless given additional
revenues) were part of providing internet access, these would be the subject of
promotion and competition between providers – and there would be no reason for
objecting to the FCC’s requirement, see 47 C.F.R. § 8.3, that “network
management” practices be disclosed. But Verizon and others do not compete over
the quality of their content-blocking policies.
Nor, finally, does the potential that Verizon might earn greater revenues if
left unregulated, see Br. 44, state a First Amendment concern: “One liable for a
15
civil damages award has less money to spend on paid political announcements…,
yet no one would suggest that such liability gives rise to a valid First Amendment
claim.…we have not traditionally subjected every criminal and civil sanction [to
scrutiny] simply because [it] …will have some effect on the First Amendment
activities of those subject to sanction.” Arcara v. Cloud Books, Inc., 478 U.S. 697,
706 (1986).
Accordingly, as in FAIR, there is simply no lawful basis here for the
heightened judicial scrutiny applicable to genuine First Amendment claims – nor
for resorting to canons that suspend ordinary interpretive deference in order to
avoid confronting “serious” constitutional problems.
***
What Verizon invites is no mere “trivialization,” but an inversion of the
relevant principles.
The claimed “Free Speech” right to interfere with users’
internet activities, by virtue of Verizon’s position operating the “last mile” of the
Internet (operational contracts themselves acquired through valuable government
licenses and benefits), is in derogation of “the policy of the United States” to
“maximize user control over what information is received” over the Internet, 47
U.S.C. § 230(b)(2) & (3), and of the principle “[a]t the heart of the First
Amendment…that each person should decide for himself or herself the ideas and
16
beliefs deserving of expression, consideration, and adherence.” Turner, 512 U.S. at
641.
The “constitutional immunity” sought by Verizon here is no less
misconceived than the similarly “strange” one the Supreme Court rebuffed decades
ago:
It would be strange indeed however if the grave concern for freedom of the
press which prompted adoption of the First Amendment should be read as a
command that the government was without power to protect that freedom.
The First Amendment, far from providing an argument against application of
the [regulations], here provides powerful reasons to the contrary. That
Amendment rests on the assumption that the widest possible dissemination
of information from diverse and antagonistic sources is essential to the
welfare of the public, that a free press is a condition of a free society. Surely
a command that the government itself shall not impede the free flow of ideas
does not afford non-governmental combinations a refuge if they impose
restraints upon that constitutionally guaranteed freedom. Freedom to publish
is guaranteed by the Constitution, but freedom to combine to keep others
from publishing is not. Freedom of the press from governmental interference
under the First Amendment does not sanction repression of that freedom by
private interests.
Associated Press v. United States, 326 U.S. 1, 20 (1945) (footnote omitted).
B. Verizon’s “Takings” Claim Is Also Meritless
Verizon’s efforts to enlist the Takings Clause likewise fail. Citing Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), Verizon insists (Br.
49) that the Open Internet Rules be adjudged a “per se” violation, on the ground
that by forbidding network operators like Verizon from blocking transmissions,
17
they effect a “permanent physical occupation” of their property or a deprivation of
their “right to exclude.”
That contention is also plainly wrong. It ignores Supreme Court precedent
squarely rejecting claims that laws providing for nondiscriminatory access to
business premises are Takings. See Heart of Atlanta Motel, Inc. v. United States,
379 U.S. 241, 261 (1964); PruneYard, 447 U.S. at 84 (explaining that ‘the fact that
[petition solicitors] may have ‘physically invaded’’[the owners’] property cannot
be viewed as determinative,” because “the owner had not exhibited an interest in
excluding all persons from his property”).
For reasons explained by the Second Circuit, in refusing to extend Loretto to
a cable system owner’s “must carry” transmission of a local broadcast signal,
Cablevision Sys. Corp. v. FCC, 570 F.3d 83, 98 (2d Cir. 2009), it is doubtful there
is any physical occupation here, see id., and surely not the “permanent” kind to
which Loretto’s avowedly “very narrow,” 458 U.S. at 441, rule applies. Cf. 17
U.S.C § 512(a) (shielding those who enable “Transitory Digital Network
Communications”).
Unlike even in that case, where the unwelcome local
broadcaster could be described as taking up “a channel” the cable system preferred
to put to different use, the supposed “occupation” of Verizon’s wires is neither
“absolute [nor] exclusive,” 570 F.3d at 98 (quoting in Southview Associates, Ltd. v.
Bongartz, 980 F.2d 84, 94-95 (2d Cir. 1992)). See Loretto, 458 U.S. at 434
18
(distinguishing PruneYard on the ground that “the invasion was temporary and
limited in nature”).
And this Court’s decision in Building Owners & Mgrs. Ass’n Int’l v. FCC,
254 F.3d 89 (D.C. Cir. 2001) (BOMA), gives further ground for rejecting Verizon’s
effort to stretch Loretto. Considering residential landlords’ challenge to FCC rules
requiring them to accede to tenant requests for permission to mount satellite
television receiving equipment, BOMA reasoned that while the cable companies in
Loretto (and presumably satellite providers) were uninvited “strangers,” subject to
the historic right to exclude, the tenant-subscribers were lawful occupants, whose
property interests qualified the landlords’. See 254 F.3d at 98; accord Loretto, 458
U.S. at 439 (observing that the law before the Court did “not purport to give the
tenant any enforceable property rights with respect to CATV installation”)
(emphasis original).
That reasoning controls here: having invited its subscribers to use its
facilities to connect to the Internet (on financial and other terms Verizon proposes),
Verizon does not maintain a broad property right to refuse passage to data those
subscribers choose to obtain from edge providers. Indeed, the Takings claim here
is far weaker than the one BOMA rejected: the federal regulation upheld there
overrode terms in residential leases, whereas these Rules implicate the FCC’s core
jurisdiction over “all interstate and foreign communication by wire or radio,” 47
19
U.S.C. § 152(a); they require transmission practices Verizon says it is already
following; they involve no physical attachment; and (unlike in Loretto or BOMA)
the alleged “beneficiary” is no one particular third party.6
Nor can Verizon satisfy the test that does govern – for the subset of
“regulatory actions” claimed to be so burdensome as to be “functionally equivalent
to … oust[ing] the owner from his domain,” Lingle v. Chevron USA, Inc., 544 U.S.
528, 539 (2005). On Verizon’s own account, the FCC’s action deprives it (and
other broadband providers) of nothing: Verizon maintains that it has not been
engaging in the kind of conduct the Open Internet Rules prohibit, and the evidence
shows a significant upswing in infrastructure investment by those affected since
their promulgation, see FCC Br. at 40.
Although Verizon highlights its extensive investments, it cannot show these
were induced by a constitutionally-protected “expectation” that it would enjoy
untrammeled power to exclude. Unlike in Kaiser Aetna v. United States, 444 U.S.
6
The decision BOMA principally relied on, FCC v. Florida Power Corp.,
480 U.S. 245 (1987), also resonates here. The plaintiff utility owners there brought
a Takings challenge to the Pole Attachments Act, 47 U.S.C. § 224, maintaining
that the attachments were a “physical occupation” and that the statute deprived
them of their “right to exclude” cable companies unwilling to pay their full rate,
however high that rate might exceed the owners’ costs. (The challengers did not
have the temerity to advance a “First Amendment” claim). The Supreme Court
saw the implications of accepting that argument: almost any land use regulation
(and many other economic regulations) could be described as “requiring” the
regulated party to forfeit a right to “exclude” those willing to do business on
reasonable terms – but not the terms the business prefers. See 480 U.S. at 252.
20
164, 176 (1979), where the consequence of the property owner’s investments was a
radical alteration of its rights vis-à-vis the general public, Verizon’s actions
(including its investments) in the wireless spectrum occur with the explicit
understanding that the United States “maintain[s]… control … over all the
channels of radio transmission,” 47 U.S.C. § 301, and that the FCC has power,
inter alia, to impose new conditions on existing licenses, id. § 316.
Any “expectation” by wireline internet access providers that they would be
free to block could only date to 2005, when the Supreme Court decided NCTA v.
Brand X Internet Servs., 545 U.S. 967, and the FCC issued its deregulatory
Wireline Broadband Order, 20 FCC Rcd 14853 (2005). But Brand X highlighted
the Commission’s power to reverse course in the future, 545 U.S. at 981 (as well as
its “freed[om]” to regulate under its “Title I” jurisdiction, id. at 996) and the Order
was issued the same day as the Internet Policy Statement, 20 FCC Rcd 14986
(2005), which confirmed consumers’ right to “access the lawful Internet content of
their choice” and to “run applications and use services of their choice,” Id. at
14987-14988.
See Joint Submission at 7 (endorsing these “existing …
principles”). Verizon’s only real claim is that it is being “deprived” of hoped-for
future revenues. But “[n]o person has a vested interest in any rule of law, entitling
21
him to insist that it shall remain unchanged for his benefit.” New York Cent. R.R. v.
White, 243 U.S. 188, 198 (1917).7
Finally, if there were any “Taking” here – itself a radical and unserious
proposition – it would not be an uncompensated one.
Verizon can and does
collect revenues from its internet access subscribers, who cause any less-welcome
applications or content to travel over Verizon’s wires. Indeed, the Rules make
explicit that providers may charge fees based on the amount of bandwidth they use,
Order ¶72, and impose no limit on those fees.
II.
The Court Should Reject, Not Postpone Decision of, the Constitutional
Claims and Affirm Congress’s Authority to Enact Communications
Law
A.
Verizon’s Arguments Would Create a Sweeping Immunity
To Forms of Regulation Long Recognized as
Constitutionally Unproblematic
Verizon’s efforts to transmogrify qualified property interests into categorical
“Free Speech” rights warrant rejection not only because they are doctrinally
wrong, but also because they disregard and threaten to disrupt settled
understandings of Congress’s power to regulate (and authorize regulation) in this
7
Basic features of the Internet medium make Verizon’s claim especially
untenable. Unlike with communication using earlier technologies, Verizon does
not provide all the inputs or even the physical infrastructure used in an internet
communication; other facilities and much open-source software are required, and
Verizon’s customers pay it for access to a broad realm of services, functions, and
information that Verizon does not generate, own or control.
22
field. Verizon’s claims – that a network operator’s transmission of its customers’
communication is its speech and therefore potentially “compelled” speech (or a
“per se” Taking) and that simple nondiscrimination obligations are presumptively
unconstitutional incursions on its “editorial discretion” –
draw into question
historic pillars of communications law, as well as more recent innovations, and
they would place beyond legislative and administrative resolution complex matters
that have been, and should be, addressed through study, the application of
accumulated expertise, and open deliberation.
Because this sort of distortion is especially serious in a field whose
“dominant characteristic” remains “the rapid pace of its unfolding,” National
Broadcasting Co. v. United States, 319 U.S. 190, 219 (1943), it is important that
Verizon’s errors here be explicitly rejected, and Congress’s “constitutional
authority and … institutional ability to accommodate fully the varied permutations
of competing interests that are inevitably implicated by … new technology,” Sony
Corp. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984), vindicated.
Beginning with its first regulation of telephone and telegraph network
operators as “common carriers,” Congress has, in the interests of promoting
competition, protecting the people who use networks to communicate, and
safeguarding their access to a multiplicity of voices, exercised its jurisdiction under
the Commerce Clause to impose (and authorize the FCC to impose) access and
23
nondiscrimination requirements much more far-reaching than the modest ones at
issue here. There is nothing in the First Amendment theories Verizon presents
here that would exclude these measures from invalidation. If transmission of data
to which any network facility operator objects (or on terms the facility owner
would prefer not to accept) is “compelled speech,” then so too would be
Congress’s and the FCC’s longstanding requirements that Verizon and other
telephone companies route calls between those whose views Verizon disapproves
(e.g., between business competitors or unions organizing Verizon workers) or at
“reasonable” rates lower than Verizon might otherwise charge.
To be sure, Congress and the FCC have, over time, moved away from
imposing the all-encompassing regulation associated with the historic “common
carrier” model, but such decisions have been rooted in judgments of policy, not
dawning doubts as to constitutional authority, let alone “First Amendment”
limitations of the sort Verizon proposes. See Joseph D. Kearney & Thomas W.
Merrill, The Great Transformation of Regulated Industries Law, 98 Colum. L.
Rev. 1323 (1998).
Indeed, measures and strategies that Congress and the
Commission have increasingly adopted in place of full common carrier regulation
would themselves be subject to the same “constitutional” objections.
The Telecommunications Act of 1996, for example, required incumbent
local exchange carriers to provide access to elements of their local networks to
24
competitors at unbundled, regulated rates, see 47 U.S.C. § 251(c)(3). Although
these complex provisions provoked ample litigation (including constitutional
claims), no court perceived that obligations to permit another party’s calls to pass
over an incumbent phone company’s lines as raising any plausible “compelled
speech” concern.
As noted above, Congress enacted legislation requiring power companies to
open their utility poles to cable companies on reasonable terms – a right later
extended to wireless carriers like Verizon (and MetroPCS), see Gulf Power, 534
U.S. at 340.
That law responded to utilities’ history of using their control over
facilities “essential” to cable and wireless service to extract artificially high rents.
Id.at 330. See also Amicus Br., Wireless Communications Ass’n, Int’l, in No. 00832 at 9 (“Just as with wireline carriers, … providers of wireless services …
depend upon access to the utilities’ poles, ducts, conduits, and rights-of-way to
provide the congressionally-desired competition.”). Although the utilities mounted
and lost a Takings challenge, they did not claim that limiting their right to set
prices impinged on “editorial discretion.”
Congress also gave cable system operators (and later satellite ones) a
statutory copyright license, see 17 U.S.C. §§ 111(c), 119, allowing them to
transmit
copyrighted
programming
(notwithstanding
the
originator’s
“constitutional” right not to speak, cf. CBS Broad., Inc. v. EchoStar
25
Communications Corp., 265 F.3d 1193, 1208 (11th Cir. 2001) (rejecting as
“wholly without merit” satellite provider’s claim that First Amendment entitled it
to a broader license), and, as noted, satellite customers were given the right to
install receiving equipment over their landlords’ objections. See BOMA, 254 F.3d
89.
More recently, smaller wireless providers such as appellant Metro/PCS have
persuaded the FCC to mandate interconnection through “roaming” requirements,
so that first voice transmissions and, more recently, data ones, will be handled
whenever a customer travels outside his provider’s service area. See 22 FCC Rcd
15817 (2007); 26 FCC Rcd 5411 (2011).
See also Verizon Br. 1 (noting
MetroPCS’s disavowal of Verizon’s takings and common carriage arguments).
Decisions whether to impose these and other access and nondiscrimination
obligations – up to and including common carrier ones – have reflected difficult
predictive judgments about the extent of competition and the magnitude and
imminence of threats; competing economic interests and expectations of regulated
parties; and disagreement over the importance of particular public values and how
these should be advanced. And incumbents have, unsurprisingly, maintained that
regulatory measures were not needed or counterproductive. So, too here: some
commentators, members of the Commission, and legislators have argued that even
the modest Open Internet requirements are unwise or premature; others, including
26
some Amici, have favored applying some – or all – of the “common carrier” duties
to broadband internet access providers, highlighting both similarities to industries
and technologies historically so regulated as well as characteristics specific to the
Internet that make openness especially important. See, e.g., Susan P. Crawford,
Transporting Communications, 89 B.U. L. Rev. 871, 877–886 (2009),
But debates about the wisdom of particular policies for particular
communications media have properly been conducted on their merits, free of
Verizon’s distorting premise here: that the First Amendment imposes stringent
limits on Congress’s power to authorize access, nondiscrimination, or even full
common carrier duties – or that “common carrier” regulation is, as a constitutional
matter, limited to the monopolies or, even more narrowly, to the historic Bell
System monopoly.8
Indeed, the costs of constitutionalizing policy questions like those here
would be far-reaching: The “strict scrutiny” Verizon briefly advocates (Br. 45 &
n.13) entails reviewing every enactment with a presumption of unconstitutionality,
and the ostensibly “modest” “avoidance” canon, Br. 41, authorizes courts to reject
legislatively-intended constructions of statutes in favor of minimally plausible
8
While mature threats to competition can be important reasons for imposing
antidiscrimination or equal access obligations, they are not constitutionallyrequired prerequisites. See, e.g., Heart of Atlanta Motel, 379 U.S. at 257-58.
27
ones, and strips administrative bodies of the deference to which they are normally
entitled by virtue of expertise and their place in the Constitution’s lawmaking
process.
B. Verizon’s Position Here Contradicts Its Own Repeated Arguments
Before Congress, the Courts and the FCC.
The extent of the departure from long-accepted understandings Verizon
invites can be seen by contrasting the contentions in Verizon’s brief here with
specific ones it (and corporate predecessors) advanced – in a many-year effort to
persuade courts that Congress had imposed common carrier obligations on cable
internet access providers, and to persuade Congress to enact legislation imposing
those duties unequivocally, denying the FCC any authority to forbear.
Far from seeing any constitutional limitation on Congress’s power, William
Barr, General Counsel of Verizon’s predecessor, GTE, emphasized in
congressional testimony that the “choice” to impose common carrier duties was
one that could (and should “be made”) by Congress.
See Add. A-2. While
recognizing that “[h]igh-speed Internet access will become the most important
communications medium in the country,” his testimony emphasized that “the
fundamental
issue”
facing
Congress
was
the
same
as
“for
all
telecommunications[:] how to allow the consumer to communicate with and obtain
information from anyone anywhere in the world,” and that the threats to that
objective likewise were familiar. Summoning “bitter experience over the twentieth
28
century,” when “large corporations came to leverage [their control over] …a large
percentage of the local pipelines into the home” to “forc[e] the consumer to do
business only with companies affiliated with the owner of the pipeline,” he
described cable companies’ practices of providing “a lower-quality connection”
and “limit[ing] video streaming over the Internet” as “discrimination pure and
simple” and impermissibly “insulat[ing] their own television product from
competition.” Add.. A-2-4.
The necessary response, Verizon told Congress, was to apply “central tenet
of ... telecommunications [regulation]” and impose “a simple legal mandate that
cable operators deliver traffic on an open and nondiscriminatory basis to other
ISPs.” Add., A-3. This “open access” common carrier treatment, his testimony
continued (id.):
is not regulation of the Internet, as some opponents suggest, but simply
ensures access to the Internet and Internet interconnection to guarantee
competition on the Internet and freedom of choice for the consumer…
The right to install a driveway and get a fair return from the consumer for
installing that driveway, but that does not give you the right to dictate to the
household where they go on the highway.9
9
Mr. Barr’s successor, Thomas J. Tauke, testified in favor of the same
measures the following year, announcing that the need for “congressional action
[had become] even more urgent.” H. Jud. Comm. Hearing (June 28, 2000). Add.
A-5.
During that same time period, Verizon sought, repeatedly, to persuade the
Commission and the courts that Congress had already required common carrier
treatment. Its Supreme Court amicus brief in Gulf Power explained that:
29
These reversals call to mind a recent submission in which Verizon, urging
the Commission not to reverse course on its classification of broadband internet
service, warned the FCC of courts’ antipathy to instances “‘[w]here a party
assumes a certain position in a legal proceeding, . . . succeeds in maintaining that
position, . . . [and then,] simply because his interests have changed, assume[s] a
contrary position.” Comments, Dkt. GN 10-127 at 39 (citations omitted) (Add. A23-24). But we do not invoke such reversals (as Verizon did) in service of a plea
for judicial estoppel. On the contrary, we believe it would be far preferable that
the Court consider – and reject – Verizon’s claims on their merits and find it
unsurprising (and not necessarily unsavory) that an enterprise that aggressively
sought access and nondiscrimination obligations when a market outsider would,
having become a dominant insider, take a different stance. But this record of
dramatic reversals does reinforce the need to guard against – and actively
cable modem service “consists of two elements: a ‘pipeline’ … and the
Internet service transmitted through that pipeline.” To the extent that a cable
operator makes available the service of an affiliated or exclusive ISP, its
activities are that of an information service. However, to the extent that a
cable operator provides its “subscribers Internet transmission over [a] cable
broadband facility,” it is “providing a telecommunications service as defined
in the Communications Act.”
Br. at 22-23 (quoting AT&T v. City of Portland, 216 F.3d 871, 878 (9th Cir.
2000)). (Add. A-7).
30
discourage – efforts to cloak matters of policy and economic interest in
“constitutional” garb.
CONCLUSION
The Court should expressly repudiate Verizon’s baseless constitutional
claims.
Respectfully submitted,
David T. Goldberg
Donahue & Goldberg, LLP
99 Hudson St., 8th Floor
New York, NY 10013
(212) 334-8813
/s/ Sean H. Donahue
Sean H. Donahue
Donahue & Goldberg, LLP
2000 L St., N.W., Suite 808
Washington, D.C. 20036
(202) 277-7085
sean@donahuegoldberg.com
January, 16, 2013 (Final Brief)
31